Commonwealth v. Rooney

SPAETH, Judge,

dissenting:

I find myself unable to agree with the majority that the lower court has adequately stated its reasons for the sen*297tence imposed. I should therefore vacate the sentence and remand for resentencing.

I acknowledge the majority’s full and careful statement of the cases defining the sentencing judge’s responsibilities. On another occasion I tried to summarize those responsibilities, and it may be useful to refer to that summary now:

The first responsibility of the sentencing judge is a fact-finding responsibility; the judge must be sure that he has before him “sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant.” Commonwealth v. Doyle, 275 Pa. Superior Ct. 373, 281, 418 A.2d 1336, 1340 (1979) citing Commonwealth v. Wicks [265 Pa. Superior Ct. 305, 401 A.2d 1223 (1979) ]. The second responsibility of the sentencing judge is an application-and-explanation responsibility; the judge must apply to the information he has gathered the statutory guidelines specified in the Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, 18 Pa.C.S. § 1321 et seq. (Supp.1977), and then explain on the record how that application has resulted in the sentence imposed. Commonwealth v. Doyle, supra, 275 Pa.Super. at 383, 418 A.2d at 1341. See Commonwealth v. Farrar, 271 Pa. Superior Co. 434, 447-453, 413 A.2d 1094, 1101-1104.
Commonwealth v. Kostka, 276 Pa. Superior Co. 494, 419 A.2d 566, 573-574 (1980) (SPAETH, J., concurring).

Here, we cannot tell whether the sentencing judge fulfilled his fact-finding responsibility. While the judge says that he “examined the defendant’s presentence investigation very, very carefully taking into account all the facts contained therein ....,” At 776, he does not tell us what those facts were. Nor did he make the report of the presentence investigation part of the record. We therefore cannot know whether the judge had before him “sufficient information to enable him to make a determination ... of the character of the defendant.”

Also, the sentencing judge failed to fulfill his application- and-explanation responsibility. His very brief statement *298makes at best only an oblique reference to the guidelines specified in the Sentencing Code, and there is no explanation of why the judge believed his sentence consistent with those guidelines. The statement is only a series of conclusions, with no specificity or concreteness being added by any reference to the record. Indeed, the statement raises more questions than it resolves. What did the judge mean by his reference to “the criminal disposition you have throughout your life?” What was “evidenced by [the] juvenile court record?” What was “the possibility of rehabilitation programs?”

At the sentencing proceeding, counsel for appellant offered several arguments in mitigation of appellant’s offenses; counsel argued to the following effect. Appellant was 17 years old when the offenses were committed. He was not the only person involved; others were with him, and one of them was an adult who had fled the jurisdiction. In some of the cases, appellant did not break in but acted as a lookout. In one case, he took a gun away from one of the others, saying, “I can’t do this.” He gave detailed statements to the police and juvenile authorities, freely admitting his involvement, and pleaded guilty to all of the offenses. He further demonstrated his change in attitude when he was in jail, awaiting trial. He had risen to the position of trustee and was permitted to leave his wing to work as a cook in the kitchen, where he had access to knives. According to counsel, the pre-sentence report showed that appellant’s juvenile offenses had not been “in the same vein” as the offenses to which he had pleaded guilty, and appellant “was never involved with guns before.” N.T. 4.

It was the sentencing judge’s responsibility to respond to this argument. The essence of the Pennsylvania law of sentencing is that the sentence be individualized. Commonwealth v. Riggins, supra. The point of requiring a statement of reasons for the sentence is to ensure that it is an individualized sentence, consistent with the Sentencing Code. Id. Here, the sentencing judge’s statement amounts only to a few brief, conclusory remarks, which could have *299been uttered in virtually any robbery case. In Commonwealth v. Farrar, 271 Pa. Superior Ct. 434, 413 A.2d 1094, we said:

[T]he responsibilities [the Sentencing Code] imposes on the sentencing judge do not fade away and disappear upon utterance of the formula that ‘a lesser sentence would depreciate the seriousness of the crime.’ The judge must state, with reference to the record, why he believes that would be so. Only thus will the ‘appellate courts [be enabled] to ascertain whether the sentence was based upon accurate, sufficient and proper information [citing Commonwealth v. Riggins, supra.]

The judgments of sentence should be reversed and the case remanded for re-sentencing according to law.